Obama Bans Drilling in Parts of the Atlantic and the Arctic

The Polar Pioneer was the first of two oil drilling rigs Royal Dutch Shell was outfitting for Arctic oil exploration before the company ended its contract last year.Credit...Elaine Thompson/Associated Press

President Obama announced on Tuesday what he called a permanent ban on offshore oil and gas drilling along wide areas of the Arctic and the Atlantic Seaboard as he tried to nail down an environmental legacy that cannot quickly be reversed by Donald J. Trump.

Mr. Obama invoked an obscure provision of a 1953 law, the Outer Continental Shelf Lands Act, which he said gives him the authority to act unilaterally. While some presidents have used that law to temporarily protect smaller portions of federal waters, Mr. Obama’s declaration of a permanent drilling ban on portions of the ocean floor from Virginia to Maine and along much of Alaska’s coast is breaking new ground. The declaration’s fate will almost certainly be decided by the federal courts.

“It’s never been done before,” said Patrick Parenteau, a professor of environmental law at Vermont Law School. “There is no case law on this. It’s uncharted waters.”

The move — considered creative by supporters and abusive by opponents — is one of many efforts by Mr. Obama to protect what environmental policies he can from a successor who has vowed to roll them back. The president, in concert with United Nations leaders, rushed countries to ratify the Paris Agreement on climate change, putting the multinational accord into force in record time, before Mr. Trump’s inauguration.

Environmentalists are already drawing comparisons between Mr. Obama’s use of the 1953 law to ban new drilling to what critics and opponents called his novel and audacious efforts to create new climate change regulations: He turned to an obscure, rarely used provision in the 1970 Clean Air Act to write sweeping regulations that would require states to shift their electricity systems from fossil fuels to renewable energy sources.

It is not unusual for presidents to be seized by a sense of urgency in their final weeks in office, said Kenneth R. Mayer, a political scientist at the University of Wisconsin. Last week, the Obama administration issued a final rule to bar states from withholding federal family-planning funds from Planned Parenthood affiliates and other health clinics that provide abortions, a measure that will take effect two days before Mr. Trump takes office.

That may not be the mad rush that academics say Bill Clinton’s White House had in its final days.

“Both the Bush administration and this administration really have tried not to have that rush,” said Susan Dudley, who headed the regulatory review process in the final years of the George W. Bush administration.

Mr. Obama is picking fights — the drilling ban is a case in point. But other presidents who have invoked old laws to enact new policies have not run up against successors like Mr. Trump.

He has mocked climate change as a hoax perpetrated by China and has attacked Mr. Obama’s environmental regulations as job killers. More important, he has promised to make fossil fuel mining and drilling across the nation’s lands and waters a central feature of his economic program. As such, he is not likely to let Mr. Obama’s drilling ban go unchallenged.

In many cases, Mr. Trump and a Republican Congress in line with the new president’s ambitions will be able to roll back some of Mr. Obama’s most recent environmental regulations. But because of new and legally inventive strategies, Mr. Obama and his staff may well have built firewalls around environmental policies that could hold off his successor — or at least keep him at bay for several years.

Tuesday’s announcement would ban drilling in about 98 percent of federally owned Arctic waters, or about 115 million acres, a pristine region home to endangered species including polar bears and bowhead whales. It would also block drilling off the Atlantic Coast around a series of coral canyons in 3.8 million acres stretching from Norfolk, Va., to the Canadian border. The coral canyons are home to unique deepwater corals and rare species of fish.

Prime Minister Justin Trudeau of Canada simultaneously announced a ban on new drilling in Canadian Arctic waters.

“These actions, and Canada’s parallel actions, protect a sensitive and unique ecosystem that is unlike any other region on earth,” said Mr. Obama in a statement. “They reflect the scientific assessment that even with the high safety standards that both our countries have put in place, the risks of an oil spill in this region are significant and our ability to clean up from a spill in the region’s harsh conditions is limited.”

Opponents of Mr. Obama’s environmental agenda said they fully expect Mr. Trump to take actions to legally undo the ban.

“We don’t see how this could be permanent,” said Andrew Radford, a senior policy adviser with the American Petroleum Institute, which lobbies for oil companies.

Mr. Radford noted that after President Bill Clinton had used the same law to withdraw 300 million acres from oil and gas drilling from an area that had already been designated as a marine sanctuary, President George W. Bush reinstated about 50 million acres to fossil fuel leases.

“Similar to how President Bush issued a memo in 2008 to add areas back in, we’re hopeful that the Trump administration will take a look at this to reverse that decision and we look forward to working with them to make that happen,” Mr. Radford said.

Mr. Obama’s legal experts say they are confident that the ban will withstand legal challenge. They point to the specific language of the law: “The president of the United States may, from time to time, withdraw from disposition any of the unleased lands of the Outer Continental Shelf.”

Nowhere does the law say that a future president can reinstate those areas, a senior administration official told reporters on the condition of anonymity.

The official compared Mr. Obama’s use of the 1953 offshore drilling law to the president’s authority to designate national monuments, granted under the 1906 Antiquities Act. No presidentially designated monument under that law has since been removed by a later president. And he noted that Presidents Dwight D. Eisenhower, Richard M. Nixon, George Bush and Bill Clinton all used the 1953 law to protect portions of federal waters. None of those designations have been undone.

“The statute does not say, ‘A president can reinstate,’” said Jason Hutt, a lawyer with Bracewell who has worked for energy companies against Obama administration actions. “It only seems to be one-directional.”

Experts say that there could be one avenue for Republicans to undo the ban: Congress could go back and amend the 1953 law, explicitly allowing presidents to reverse the drilling bans of their predecessors. However, that would require a 60-vote Senate majority to clear procedural hurdles, a challenge in a Senate with 52 Republicans.

“They’ll be arguing about this for years in the courts,” said Mr. Paranteau, the Vermont law professor. “It would be surprising if the Republican Congress didn’t do anything about it in the meantime.”